Owens v. Elrac, LLC

213 A.D.3d 684

184 N.Y.S.3d 62

Tanisha OWENS, respondent,

v.ELRAC, LLC, et al., defendants,Anthony H. Forde, appellant.

2020–00755

Index No. 504085/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 28, 2022

February 1, 2023

Carman, Callahan & Ingham, LLP, Farmingdale, NY (James Carman of counsel), for appellant.

Mikhail Yadgarov & Associates, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Paul H. Seidenstock, and Jillian Rosen], of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Anthony H. Forde appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 22, 2019. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident. The defendant Anthony H. Forde (hereinafter the defendant) moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated November 22, 2019, the Supreme Court denied the motion. The defendant appeals.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine were not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424 ).

In opposition, however, the plaintiff raised a triable issue of fact as to whether the alleged injuries to the cervical and lumbar regions of her spine were caused by the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 217–219, 936 N.Y.S.2d...